Muhammed Khan N. v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 WP(CRL.) NO. 784 OF 2023** ## **PETITIONER:** MUHAMMED KHAN.N., AGED 65 YEARS, S/O.NAVAB KHAN, TC 24/1369, CHARIVILAKAM HOUSE, METTUKADA, THYCAUD, THIRUVANANTHAPURAM, PIN – 695014. BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA UNNIKRISHNAN **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY, (HOME & VIGILANCE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001. 2 THE DISTRICT MAGISTRATE, COLLECTORATE, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM, PIN – 695043. 3 THE DISTRICT POLICE CHIEF, OFFICE OF THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM, PIN – 695033. 4 THE DEPUTY COMMISSIONER OF POLICE (L&O) THIRUVANANTHAPURAM CITY, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN – 695014. 5 THE STATION HOUSE OFFICER, MUSEUM POLICE STATION, THIRUVANANTHAPURAM, PIN – 695011. 6 THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THRISSUR, PIN – 680010. BY SRI.K.A.ANAS- PUBLIC PROSECUTOR(GP-2) THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 15.09.2023, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING: **W.P.(Crl.)No.784 of 2023** **- 2 -** ## **ANU SIVARAMAN & C.JAYACHANDRAN, JJ.** **----------------------------------W.P.(Crl).No.784 of 2023 ----------------------------------Dated this the 06[th] day of October, 2023** ## **JUDGMENT** ## **C.Jayachandran, J.** **The petitioner seeks issuance of a writ of habeas corpus in the instant writ petition, on the allegation that his son is detained illegally by virtue of Ext.P1 detention order dated 16.5.2023 issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P)A' for short).** **2. The petitioner's son was undergoing judicial custody when Ext.P1 detention order was issued and his formal arrest was recorded on 16.05.2023. Vide Ext.P4 order dated 14.7.2023, the Government confirmed Ext.P1 order of detention directing continued detention for a period of six months from the date of detention. The petitioner assails Ext.P1** **W.P.(Crl.)No.784 of 2023** **- 3 -** **order on various counts, which will be dealt with in detail herebelow.** **3. Heard Sri.Suman Chakravarthy, learned counsel** **for the petitioner and Sri.K.A.Anas, learned Government Pleader on behalf of the respondents.** ## **4. Grounds urged:** **Learned counsel for the petitioner urged the following grounds for consideration to assail Ext.P1 detention order:-** **(i) There is a delay of 51 days between the date of recommendation by the sponsoring authority and the date of detention order, whereby the live link between the last prejudicial activity and the purpose of detention stands snapped. In elaboration, learned counsel would submit that the last prejudicial activity reckoned was allegedly committed on 7.1.2023 and that the sponsoring authority recommended preventive detention on 25.3.2023, whereas Ext.P1 detention order was passed only on** **W.P.(Crl.)No.784 of 2023** **- 4 -** **16.5.2023. The time gap between two events are liable to be reckoned. The first is by and between the date of last prejudicial activity (7.1.2023) and the date of Ext.P1 detention order (16.05.2023), which is 4 months and 9 days; and the second is the time span between the date of recommendation made by the sponsoring authority (25.03.2023) and the date of Ext.P1 detention order (16.5.2023), which is 51 days. According to the learned counsel, the live link between the last prejudicial activity and the purpose of detention is snapped on account of the delay above referred. Learned counsel relied upon the following decisions in support of this point:** - **a) Abidha Beevi v. State of Kerala and others [2013 (1) KLT 286]** - **b) Jasid A.S. v. State of Kerala [2022 (6) KLT 784]** - **c) Varghese M.P. v. State of Kerala and others [2021 KHC 4998]** - **(ii) The second aspect also pertains to delay of 18 days between the date of report of the Advisory Board (26.6.2023) and the order of confirmation by the Government under Section 10(4) of the KAA(P)A** **W.P.(Crl.)No.784 of 2023** ## **- 5 -** **(14.7.2023), which unexplained delay vitiates Ext.P1 detention order. In support of the above proposition learned counsel would rely upon two Bench decisions of this Court in Sarojini v. Union of India & others [2009 KHC 1134] and Jasid.A.S. v. State of Kerala [2022 (7) KHC 453]** . - **(iii) The third count also pertains to the time gap between the penultimate crime and the last prejudicial activity. While the former was registered on 17.9.2019, the latter was only on 7.1.2023. The time gap of more than 3 years and 2 months would establish that there was no imminent necessity to detain the detenu. According to the learned counsel, the subjective satisfaction of the detaining authority is therefore flawed.** - **(iv) The fourth ground canvassed by the learned counsel for the petitioner is with respect to the non-application of mind by the detaining authority in issuing Ext.P1 detention order. Inviting our attention to page no.7 of Ext.P1 detention order,** **W.P.(Crl.)No.784 of 2023** **- 6 -** **learned counsel pointed out that the name of the detenu is wrongly referred. While the detenu's name is 'Arif Muhammad', it has been referred to as 'Asif'. Secondly, learned counsel pointed out that there is no discussion, whatsoever, of the bail conditions, subject to which the detenu was released on bail in the last crime, as also, in other crimes, so as to enter into a finding as to whether the conditions of bail are sufficient enough to prevent the detenu from indulging in criminal activities. Learned counsel would submit that the entire detention order vide Ext.P1, barring a few factual particulars, is nothing but a rhetoric reproduction of certain stereo type statements, without any pinpointed discussion pertaining to the individual detenu. This, according to the learned counsel, would also vitiate Ext.P1 order. Simultaneous with this, learned counsel would contend that Ext.P4 confirmation order is not a speaking order, implying total non application of mind.** **(v) The last point canvassed by the learned counsel is that the copies of the** **W.P.(Crl.)No.784 of 2023** **- 7 -** **documents relied upon by the detaining authority and supplied to the detenu are not legible, thereby jeopardizing the detenu's right to prefer an effective representation challenging Ext.P1 detention order.** ## **' - 5. Respondents reply:** **Per contra, learned Government Pleader refuted all contentions urged on behalf of the petitioner. As regards the alleged delay between the last prejudicial activity - or for that matter, the date of recommendation of the sponsoring authority - and the date of Ext.P1 detention order, learned Government Pleader submitted that the detenu, who was arrested in connection with the last crime on 21.1.2023, was enlarged on bail only on 31.3.2023, that is to say, after a period of more than two months and ten days in judicial custody. It is taking into account the possibility of the detenu's release in the last crime that, the Deputy Commissioner of Police (Law & Order) preferred a** **W.P.(Crl.)No.784 of 2023** **- 8 -** **report recommending preventive detention to the District Magistrate on 20.03.2023. Therefore, the delay between the date of last prejudicial activity and the date of detention order (16.5.2023) stands explained. From the date of recommendation of the sponsoring authority, the detaining authority took less than two months time to pass Ext.P1 detention order, which delay is not inordinate, having regard to the onerous responsibility of the detaining authority to verify voluminous records, in order to arrive at a subjective satisfaction that the preventive detention of the detenu is required. As regards the third point, namely, the time gap between the penultimate crime and the last prejudicial activity, learned Government Pleader would submit that there is no necessity to commit a crime in every year to consider one as a known rowdy. Going by the definition of a 'known rowdy' under Section 2(p), the stipulated number of crimes are to be committed within a span of seven years, wherefore, it is not open for the petitioner to** **W.P.(Crl.)No.784 of 2023** **- 9 -** **contend that since there is a time gap of more than three years between the penultimate crime and the last prejudicial activity, there is no immediate necessity to detain the detenu. Coming to the subjective satisfaction, learned Government Pleader would point out that, once the objective satisfaction as regards the requisite parameters of a 'known rowdy' is satisfied in terms of the definition, what has to be looked into is the criminal propensity of the detenu, in the backdrop of posing an imminent threat to the public at large, on account of his free roaming in the society. As regards the difference in the name of the detenu in page no.7 of Ext.P1 order, it was submitted that the same was only a mistake, especially on account of the similarity of the names 'Arif' and 'Asif' and that the said mistake cannot be propounded in support of the alleged non-application of mind. As regards the allegation that the copies of the documents supplied were not legible, learned counsel would submit that the same were legible, though** **W.P.(Crl.)No.784 of 2023** **- 10 -** **smeared with a black colour occasioned while photocopying. The contents are quite readable, according to the learned Government Pleader.** **6. Having heard the learned counsel appearing on both sides, we may first refer to the following tabular statement to notice the number of crimes, as also its nature, reckoned for the purpose of detention:-** |**Sl**<br>**No**|**Police**<br>**Station**|**Crime No. and**<br>**Section**|**Date of**<br>**Occurrence**|**Court No. and**<br>**Court**<br>**Name/**<br>**Present Stage**| |---|---|---|---|---| |**1**|**Museum**|**1276/2016**<br>**U/s.294(b),**<br>**323, 324, 34 of**<br>**IPC**|**15.08.2016 **|**CC.336/2016**<br>**JFMC-III**<br>**Thiruvananthapuram**| |**2**|**Museum**|**2000/2016**<br>**U/s.143,**<br>**147,148, 149,**<br>**452, 341, 323,**<br>**324, 325, 427,**<br>**354 of IPC &**<br>**Sec.27 of Arms**<br>**Act**|**27.12.2016 **|**CC.1368/2021**<br>**JFMC-III**<br>**Thiruvananthapuram**| |**3**|**Poojappura**|**1593/2018**<br>**U/s.143,**<br>**147,148, 149,**<br>**201, 202,**<br>**294(b),**<br>**506(ii), 326,**<br>**308 of IPC**|**03.09.2018 **|**SC.346/2019**<br>**ACJM,**<br>**Thiruvananthapuram**| **W.P.(Crl.)No.784 of 2023** **- 11 -** |**4**|**Museum**|**64/2019**<br>**U/s.323, 324,**<br>**341, 294(b), 34**<br>**of IPC**|**09.01.2019 **|**JFMC-III**<br>**Thiruvananthapuram**| |---|---|---|---|---| |**5**|**Museum**|**1860/2019**<br>**U/s 385, 34 of**<br>**IPC**|**17.09.2019 **|**CC.1612/2019**<br>**JFMC-III**<br>**Thiruvananthapuram**| |**6**|**Pettah**|**17/2023**<br>**U/s.143, 147,**<br>**148, 149, 341,**<br>**294(b), 324,**<br>**506(II), 120B,**<br>**427, 307 of IPC**<br>**& Sec.27 of**<br>**Arms Act**|**07.01.2023 **|**Under**<br>**Investigation**| ## **7. We will now indicate the timelines of events,** ## **which culminated in Ext.P4 confirmation order:-** - **Sl.No. Date Event 1 7.1.2023 Last prejudicial activity (Crime No.17/2023).** - **2 21.1.2023 Detenu was arrested in the last crime.** - **3 20.3.2023 Deputy Commissioner of Police (Law & Order), Thiruvananthapuram filed report recommending preventive detention of the detenu.** - **4 31.3.2023 The detenu got bail in the last crime vide Ext.P2 order.** - **5 16.5.2023 The detaining authority passed Ext.P1 detention order, pursuant to which the detenu was arrested on the same day.** **W.P.(Crl.)No.784 of 2023** **- 12 -** - **6** - **24.5.2023 The Government approved Ext.P1 detention order under Section 3(3).** - **7 25.5.2023 The Government referred the matter to the Advisory Board under Section 9.** - **8 26.6.2023 The Advisory Board gave report under Section 10(1) opining sufficient cause for detention.** - **9 14.7.2023 The Government issued Ext.P4 order confirming Ext.P1 detention order and directing continuance of the detention for a period of six months from the date of detention.** **8. With this prelude, we will address the grounds raised in seriatim. The first contention is based on delay in issuing Ext.P1 detention order; two dimensional as it is projected, one reckoned from the date of last prejudicial activity and the second from the date of report by the Sponsoring Authority. The last crime reckoned for the purpose of preventive detention is Crime No.17/2023 of Pettah Police Station, which was registered on 07.01.2023. Reckoned from that date, there is a delay of 4 months and 9 days in issuing Ext.P1 order on 16.5.2023. Similarly, the Sponsoring Authority gave** **W.P.(Crl.)No.784 of 2023** **- 13 -** **report/recommendation to the District Magistrate on 20.3.2023 and reckoned from that date, there is a delay of 51 days, until 16.5.2023, when the detention order was issued. The explanation in this regard is contained in paragraph no.11 of the counter affidavit preferred by the 1[st] respondent.** **9. We notice that the detenu was arrested in connection with last crime on 21.1.2023 and he was in judicial custody till 31.3.2023, on which date he secured bail vide Ext.P2 order. It is explained that the Sponsoring Authority collected relevant records, when the detenu submitted application for bail and the authority proposed detention as per report dated 20.3.2023, that is to say, 10 days before the detenu was enlarged on bail in the last crime. It could thus be seen that the detenu was in judicial custody when the sponsoring authority proposed preventive detention on 20.3.2023. As many as six cases were considered for the purpose of detention, the details of which are elaborately dealt with in Ext.P1** **W.P.(Crl.)No.784 of 2023** **- 14 -** **detention order, which indicates due application of mind by the detaining authority. This part of the satisfaction of the detaining authority is objective in nature, especially to ensure that the proposed detenu answers the definition of a 'known rowdy' as per Section 2(p) of the KAA(P)A. Thereafter, the detaining authority has to be satisfied subjectively as regards the necessity to put the detenu under preventive detention, taking into account the larger public interest, with a view to prevent the detenu from committing any anti-social activity. The above aspects are referred only to point out that the responsibility cast on the detaining authority in issuing an order of preventive detention is an onerous one, which can never be mechanical, but based on the satisfaction of various parameters, both objective and subjective. It involves verification of several facts and scrutiny of voluminous documents. Therefore, a delay of 51 days cannot be said to be inordinate, so as to vitiate Ext.P1 detention order. The same cannot snap the** **W.P.(Crl.)No.784 of 2023** **- 15 -** **live link between the last prejudicial activity and the purpose of detention. We also have to notice that the detention became an imminent necessity only upon the release of the detenu from judicial custody on 31.3.2023, reckoned from which date, the delay is only 45 days.** **10. Before concluding the point we may refer to the case laws on the point as well. In Hemlata Kantilal Shah v. State of Maharashtra and others [(1981) 4 SCC 647], the Hon'ble Supreme Court held that delay** _**ipso facto**_ **is not fatal if the same is satisfactorily explained. In Golam Hussain Alias Gama v. Commissioner of Police, Calcutta and others [(1974) 4 SCC 530] the Hon'ble Supreme Court held that there must be a live link between the grounds of criminal activity and the purpose of detention. This credible chain would be snapped if there is too long and unexplained an interval between the offending act and the order of detention. It was however held that no mechanical test by counting the** **W.P.(Crl.)No.784 of 2023** **- 16 -** **months of interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay, etc. In Gora v. State of West Bengal [(1975) 2 SCC 14] the Hon'ble Supreme Court reiterated the legal position regarding time lag and held that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending act and the order of detention. The Supreme Court went on to hold that it is only a subsidary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that, from it a reasonable prognosis can be made as to the future conduct of the detenu; and its utility, therefore, lies only insofar as it subserves that purpose and it cannot be allowed to dominate or drown it. Relying upon the above referred decisions of the Hon'ble Supreme Court, a Division Bench of this Court in Rahila Nazeer v. State of Kerala and** **W.P.(Crl.)No.784 of 2023** **- 17 -** **others [2016 (2) KLT 838] expatiated the legal position that in cases of the proposed detenu being in judicial custody, the detaining authority can wait and can pass an order of detention pursuant to his release. The relevant findings in paragraph no.12 of the judgment are extracted herebelow:-** **"** _**12. It is not the delay alone that matters. If the delay in passing the order of detention is unexplained and inordinate, it could be said that the live link between the prejudicial activity and the order of detention is snapped. It is not a mechanical test that can be applied in the matter of ascertaining whether the live link is snapped. If the delay is satisfactorily explained, it cannot be held that the live link is snapped. The KAA(P) Act does not provide that if the period of six months from the last prejudicial activity expires, no order of detention can be passed. The legislature in its wisdom did not think that an order of detention cannot be passed after the expiry of the period for which a person can be detained under S.3, reckoning the period from the date of the last prejudicial activity to the order of detention. The period of detention under S.3 as such cannot be a determining factor to assess whether there is inordinate and unexplained**_ **W.P.(Crl.)No.784 of 2023** **- 18 -** _**delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody (in the crimes already registered and pending investigation) in order to enable the detaining authority to pass an order of detention. In short, the facts situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention."**_ **11. In Rahila (supra), this Court held that a delay of six months in issuing a detention order stood satisfactorily explained in view of the fact that the detenu was in judicial custody and that reckoned** **from the date of his release, there is no considerable delay in issuing the detention order.** **W.P.(Crl.)No.784 of 2023** **- 19 -** **12** . **Learned counsel for the petitioner placed heavy reliance upon a Bench decision of this Court in Abidha Beevi v. State of Kerala [2013 (1) KLT 286]. We note that all what was held in Abidha Beevi (supra) was that the delay of more than four months in issuing the detention order is neither explained in the order, nor in the counter affidavit filed by the detaining authority. Mere delay would not vitiate the order of detention, provided the same is satisfactorily explained by the authorities concerned. Another Bench decision relied upon by the learned counsel for the petitioner is one in Varghese.M.P. v. State of Kerala and others [2021 KHC 4998]. In that case, there was a delay of more than three months from the last prejudicial activity** **and the order of detention. Here again, no explanation was offered either by the sponsoring authority or by the detaining authority for the delay caused; instead, the administrative rig-morale was stated as the explanation, which was frowned upon by the Division Bench. Simultaneous with the** **W.P.(Crl.)No.784 of 2023** **- 20 -** **delay, the fact that proceedings under Section 107 Cr.P.C. has been closed also persuaded the Bench to set aside the order of detention. The third decision relied upon by the petitioner is a recent one in Jasid.A.S. v. State of Kerala [2022 (6) KLT 784]. A perusal of paragraph no.6 of the judgment would indicate that the last prejudicial activity of the detenu therein was on 21.2.2022, that he was arrested on 04.03.2022 and enlarged on bail on 26.3.2022, whereas the sponsoring authority gave report only on 24.5.2022, thereby entailing a delay of two months from the date of release of the detenu even to prefer a report by the sponsoring authority. The detention order was issued much later on 15.8.2022. It is on these facts that the Division Bench held that the delay is quite inordinate and unexplained.** **13. We notice that all the three decisions relied upon by the learned counsel for the petitioner are not on all fours to the instant facts. As held in** **W.P.(Crl.)No.784 of 2023** **- 21 -** **Rahila Nazeer (supra) the fact situation in each case is relevant while addressing the question whether the delay is inordinate, so as to vitiate the order of detention, that too in the context of the live link between the prejudicial activity and the order of detention being snapped.** **14. One another aspect which we are called upon to address in the context of the delay alleged is the absence of a specific explanation regarding delay in Ext.P1 detention order. It is true that Ext.P1 detention order does not explain the delay specifically, though the factual parameters constituting the delay especially as to the date of release of the detenu from the judicial custody, etc. are very much recited and considered in Ext.P1 order. The delay alleged is seen elaborately dealt with in the counter affidavit preferred by the 1[st] respondent, specifically vide paragraph nos.7 and 11. The contention raised by the learned counsel for the petitioner in this regard is squarely in the** **W.P.(Crl.)No.784 of 2023** **- 22 -** ## **teeth of the dictum laid down in Hemlata Kantilal (supra), the relevant findings of which are extracted herebelow:** _**“7. The submission of learned counsel is that his grievance is not so much on the time lag or delay between the date of arrest and the date of detention; his real grievance is in not furnishing with the information as to the cause of the delay so as to enable the detenu to file a proper representation before the Advisory Board for its consideration. In our opinion, the submission is untenable. The detaining authority is in no legal liability to tell or satisfy the detenu as to the causes of delay; it is under an obligation to satisfy the court as to the causes of delay to show that there was no infraction of the constitutional provisions laid down under Sub-Article (5) of Art.22 of the Constitution. In our opinion, the delay has been satisfactorily explained by the authority in its affidavit and it has not vitiated the detention.”**_ **15. In view of the above, the said contention of the petitioner will stand rejected.** **16. The second contention is also based on delay in issuing the confirmation order under Section 10(4)** **W.P.(Crl.)No.784 of 2023** **- 23 -** **of the KAA(P)A. The Advisory Board gave report sustaining the grounds for detention on 26.6.2023 and the Government issued order confirming the detention on 14.7.2023, which is within a period of 18 days. According to the learned counsel for the petitioner, the said delay is inordinate. Here, we notice that an order of confirmation by the Government is again, not mechanical. All the aspects have to be considered by the Government, including the report of the Advisory Board, before issuing a confirmation order under Section 10(4) of the Act. That apart, it is relevant to note that, the statute does not prescribe any time limit, within which a confirmation order has to be passed under Section 10(4); whereas it does prescribe an outer time limit of 9 weeks from the date of detention for the Advisory Board to prefer a report under Section 10(1). We are not of the opinion that a confirmation order can be passed, in the absence of a statutory time limit, as and when the authority pleases. Needless to say that such order of** **W.P.(Crl.)No.784 of 2023** **- 24 -** **confirmation has to be passed as expeditiously as possible. However, we are of the view that a delay of 18 days taken by the confirming authority to pass an order under Section 10(4) is not inordinate. We further notice that the confirmation order under Section 10(4) was passed on 14.7.2023, within a period of 60 days from the date of execution of the detention order, i.e., 16.5.2023, which is well within the mandatory period prescribed by Article 22(4) of the Constitution of India. As regards the decisions pointed out by the learned counsel for the petitioner, Sarojini v. Union of India and others [2009 KHC 1134] only stipulates that a confirmation order has to be passed expeditiously, with which legal position we respectfully concur, simultaneous with holding that a delay of 18 days is not inordinate. That apart, in Sarojini's case (supra), the whole discussion was made in a factual matrix, where the confirmation order was passed on the third working day, after receipt of report of the Advisory Board. In Jasid's case (supra) the delay was two and** **W.P.(Crl.)No.784 of 2023** **- 25 -** **a half months, wherefore, the dictum laid down therein cannot be automatically applied to the given facts. The second contention is also therefore rejected.** **17. The third contention is again on the time span between the penultimate crime and the last prejudicial activity. Learned counsel would point out that the fifth crime, which is the penultimate crime reckoned for the purpose of detention, was allegedly committed on 17.9.2019, whereas the last crime was registered on 07.01.2023, after more than 3 years; 3 months and 21 days. Again, the petitioner's counsel would contend that the time span between the two crimes would clearly indicate that there was no imminent necessity to detain the detenu. Here, we are in complete agreement with the explanation offered vide paragraph no.12 of the counter affidavit, wherein it is referred that the crimes reckoned for the purpose of detention were registered on 15.8.2016, 27.12.2016, 2.9.2018,** **W.P.(Crl.)No.784 of 2023** **- 26 -** **9.1.2019, 17.9.2019 and the last one on 07.01.2023. It could thus be seen that the detenu got himself involved in two cases in the year 2016, one in the year 2018, again two cases in the year 2019 and one in the year 2023. All the crimes reckoned are serious in nature, including attempt to commit murder. As against three cases required to answer the definition of a 'known rowdy', the detenu is involved in six cases. In this regard, we may profitably refer to a Bench decision of this Court in Ammini v. State of Kerala [2016 (2) KLT 944 (DB)] wherein it is held that non-registration of a crime for a considerable length of time is not a ground which can be recognized to attack the subjective satisfaction of the detaining authority. It was further held that the cumulative effect of the nature of the crimes in which the detenu is involved in the previous 7 years and the activities of the detenu in recent times would lay the necessary factual foundation for preventive detention and that the High Court, in exercise of the writ** **W.P.(Crl.)No.784 of 2023** **- 27 -** **jurisdiction, cannot substitute its reasoning to the subjective satisfaction of the detaining authority.** **We also note that the contention of the learned counsel is squarely in the teeth of 7 years period prescribed in the definition of a 'known rowdy' under Section 2(p) of the KAA(P)A.** ## **18. Non application of mind:** **The fourth contention is regarding non-application of mind by the detaining authority. Three aspects have been referred to suggest non-application of mind, which we will refer herebelow one after another.** ## **19. Difference in the name:** **The detenu's name is 'Arif Muhammad', whereas he has been referred to as 'Asif' in Ext.P1 order (see running page no.22), which, according to the petitioner, implies complete non-application of mind, besides suggesting the possibility of a detention order against another detenu by name Asif** **W.P.(Crl.)No.784 of 2023** **- 28 -** **being used with suitable modifications. We find little merit in this contention. It is notworthy that the names 'Arif' and 'Asif' are similar, with the solitary difference of the second alphabet. There is nothing to suggest that other particulars in Ext.P1 order are erroneous, or for that matter, pertaining to another detenu by name 'Asif' so as to infer non-application of mind. We therefore reject that contention.** **20.Non consideration of the bail conditions:** **Learned counsel for the petitioner would emphatically contend that the conditions of bail upon which the detenu stands enlarged in the crimes reckoned were not considered at all by the detaining authority to arrive at a proper subjective satisfaction that such conditions are not sufficient to contain the alleged criminal propensity of the detenu. Learned counsel relied upon the following judgments of this Court in this regard:** **W.P.(Crl.)No.784 of 2023** **- 29 -** **1. Nalini v. State of Kerala and others** - **[ 2014 (1) KLJ 54]** **2. Mohanan v. State of Kerala and others [2014 KHC 3501]** **3. Shajitha Suneer v. State of Kerala and others [2019 (3) KLT 388]** **4. Jancy Joseph v. State of Kerala [MANU/KE/3169/2022 in WP(Crl) No. 720/2022]** **5. K.Suresh Kumar v. State of Kerala and others [W.P.(CRL.)No.232/2022 dated 10.7.2023]** **21. In answer to the above contention the learned Government Pleader contended that the sufficiency of the bail conditions have been taken into account by the detaining authority, as could be seen from Ext.P1 order (running page no.23), wherein it is referred that despite imposing stringent bail conditions, the detenu is indulging in various crimes and anti-social activities with utter disregard to law and legal measures. In the same paragraph, at running page no.23, the bail condition in the last crime bearing no.1593/2018, as also in** **W.P.(Crl.)No.784 of 2023** **- 30 -** **the previous crimes, were specifically referred to to find that the bail conditions are thoroughly insufficient to prevent the detenu from indulging in further criminal activities. Learned Government Pleader relied upon a Bench decision of this Court in Anita Antony v. State of Kerala [2022 (4) KLT 271] in this regard.** **22. Having considered the rival contentions, we find little force in the petitioner's claim that Ext.P1 order reflects non-application of mind for want of consideration of bail conditions. The subjective satisfaction of the detaining authority is reflected in the following recitals in Ext.P1 order:** "........നനരനരര കമസമമധമന വനരദ പവർതനങളനൽ ഏർപപടവരന എതനർകകനപയ ആയതനൽ നനനര പനനനരനപനകനതനനമയന ഇൻഡഡൻ ശനകമ നനയമകമരമള കകസകൾ രജനസർ പചയനടര നനരവധന പമവശഡര എതനർകകനപയ അറസസ പചയസ ജഡഡഷഡൽ കസഡനയനൽ പമർപനചനടര,, ശകമമയ ജമമഡവഡവസകൾ ഏർപപടതനയനടര കനമനനൽ നനയമ നടപടന നനയമര വകപസ 107 പകമരമള നടപടനകൾ സസഡകരനചനടര കറകതഡങളനൽ ഏർപപട വരനതര നനയമവഡവസപയ പചനചര തളനപറഞര നനരനരര സമമഹഡവനരദ പവർതനങളനൽ ഏർപപടസ തപന പവർതനകമഖല **W.P.(Crl.)No.784 of 2023** **- 31 -** വഡമപനപനചസ ഗരതര സമമഹഡവനരദ പശങൾകസ കമരണകമരനമയന പവർതനചസ വരകയമണസ. ............ അവസമന നനയമവനരദപവതനയനൽ ഉപമധകകളമപടയമണസ ജമമഡര ലഭനചപതങനലര കക നമർ 1593/2018 മൻ കറകതഡങളനൽ കകമടതന ഏർപപടതനയ ജമമഡ വഡവസകൾ നനരനരര ലരഘനച വഡണര കറകതഡങളനൽ ഏർപപടനതനനമൽ ടന ജമമഡ വഡവസയര പരഡമപമലമപയനസ കബമധഡ മമയനരനകന ." **(underlined by us for emphasis)** **23. When the bail conditions of the last crime no.1593/2018, as also previous crimes, is specifically referred to in Ext.P1 order, it is only reasonable to conclude that the detaining authority had considered the bail conditions in the said crimes, more so, in view of his finding that such conditions are not sufficient enough to prevent the detenu from indulging in further crimes.** **24. Coming to the precedents relied upon by the counsel for the petitioner, Nalini (supra) is a case where the Magistrate, in the impugned detention order, does not say that the detenu cannot be deterred from indulging in anti-social activity by the bail conditions imposed on him. (see paragraph** **W.P.(Crl.)No.784 of 2023** **- 32 -** **17 of the judgment). The same is the situation with respect to Mohanan (supra). The following excepts from paragraph 14 of the judgment will make it clear that the fact situation in the case at hand is different altogether and clearly distinguishable from the facts in Mohanan (supra):-** _**"14. In so far as this case is concerned, neither the reports made under S.3(1) nor the detention order passed under S.3(2) of the Act contain any reference to Ext. P9 bail order passed by the trial court nor a finding that the conditions imposed therein are insufficient to prevent the detenu from continuing the anti-social activities. .........."**_ **25. The dictum laid down in Shajitha Suneer (supra) was doubted by the Hon'ble Supreme Court in the Order dated 22.9.2020 in a Criminal Appeal carried from the said judgment (Diary No.34801/2019) and it was directed that the judgment shall not be treated as a precedent in future cases. It appears that the petitioner has wrongly placed reliance upon Jancy** **W.P.(Crl.)No.784 of 2023** **- 33 -** **James (supra), where the bail conditions has been duly considered by the detaining authority to find that detention is inevitable. That apart, the following observations in Anita Antony v. State of Kerala [2022 (4) KLT 721] was quoted with approval in Jancy James:-** _**"12. The second contention is a claim that the detenu had scrupulously followed the bail conditions in the last crime (Crime No.460 of 2021 of Alappuzha North Police Station) and therefore, the subjective satisfaction to initiate proceedings under the KAA(P)A is vitiated. We cannot endorse the said submission of the learned counsel. As rightly pointed out by the learned Government Pleader, the last prejudicial activity reckoned by the detaining authority is the fourth crime and in all previous crimes, while being enlarged on bail, the detenu was put on similar condition that he shall not indulge in any criminal activity while on bail. This condition has been contemptuously violated by the detenu, as is established by the subsequent crimes, including the last one of the year 2021. Therefore, we are of the opinion that the compliance with the bail condition in the last crime cannot be gainsaid by the detenu, to assail the subjective satisfaction of the detaining**_ **W.P.(Crl.)No.784 of 2023** **- 34 -** _**authority, which is otherwise established by materials on record."**_ **26. The last decision in K.Suresh Kumar (supra) relied upon by the petitioner is also clearly distinguishable on facts, as could be seen from paragraph no.4 of the judgment, for, in that case as well, the bail order in the last crime was not placed or considered by the detaining authority.** **We therefore repel the said contention also.** **27. Confirmation order is not a speaking one: We reject this contention for two reasons. Primarily, we find that the subject confirmation order, in fact, refers to various aspects including Ext.P1 detention order passed by the detaining authority, the order of approval by the Government dated 24.5.2023, the representation preferred by the detenu dated 24.5.2023 and the report/recommendation made by the Advisory Board. Thereafter, Government/confirming authority arrives at the** **W.P.(Crl.)No.784 of 2023** **- 35 -** ## **following conclusion:** _**"4. Accordingly, after having carefully examined the case afresh with reference to the relevant records, including opinion of the Advisory Board, representations submitted by the detenu and circumstances of the case, Government hereby confirms under Section 10(4) of the Kerala Anti-social Activities (Prevention) Act 2007, the order of detention read as 1[st] paper above and order that the detention of Shri.Arif Muhammad @ Pappy, S/o Saleem Muhammad Khan, TC. 24/1369, Charuvilakam House, Mettukada, Thycaud Ward, Thycaud Village, Thiruvananthapuram District will be continued for a period of six months with effect from the date of detention."**_ **We cannot therefore find that Ext.P4 confirmation order is a non-speaking one.** **28. That apart, a five Judges bench decision of the Hon'ble Supreme Court in Haradhan Shah v. State of West Bengal [(1975) 3 SCC 198] held thus in paragraph no.26:** _**"26. The opinion of the Board as well as the order of the Government rejecting the**_ **W.P.(Crl.)No.784 of 2023** **- 36 -** _**representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government and the Advisory Board."**_ **29. Copies of documents supplied were illegible: The last contention raised by the learned counsel for the petitioner is an allegation that the copies of the documents supplied to the detenu were illegible. Learned counsel for the petitioner handed over such documents to us, which according to him, were illegible. However, a perusal of the same would indicate that the contents of the documents are quite readable, though smeared with a black colour, presumably occasioned while photocopying, as the learned Government Pleader would contend. Besides, the detenu has no case in his representation that his right to represent against the detention is jeopardised for reason of supplying illegible copies of the documents.** **W.P.(Crl.)No.784 of 2023** **- 37 -** **The writ petition lacks merit and the same would, therefore, stand dismissed.** **Sd/-** **ANU SIVARAMAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **skj** **W.P.(Crl.)No.784 of 2023** **- 38 -** ## **APPENDIX OF WP(CRL.) 784/2023** PETITIONER'S EXHIBITS Exhibit - P1 A TRUE COPY OF THE DETENTION ORDER NO. DCTVM/3799/2023-S13 DATED 16.05.2023 ISSUED BY THE 2ND RESPONDENT. Exhibit - P2 A TRUE COPY OF THE ORDER DATED 31.03.2023 IN BA NO.2131/2023. Exhibit - P3 A TRUE COPY OF THE REPRESENTATION DATED 24.05.2023. Exhibit - P4 A TRUE COPY OF THE G.O(Rt) NO.1936/2023/HOME DATED 14.07.2023 Exhibit - P5 A TRUE COPY OF JUDGMENT DATED 10.07.2023 IN WP (CRL) NO.232/2023